The implied freedom of communication on political matters as enunciated by the High Court in many recent cases serves to somewhat curb legislative power, for legislation which impermissibly burdens the freedom, may be held to be invalid. In that way the judiciary may be seen to encroach upon legislative power. Views will differ as to how far that should go – in particular, views will differ as to whether or not the legislative restrictions in fact burdened the freedom and whether or not the legislative provisions adopted were nevertheless reasonably appropriate or proportionate to the pursuit of Parliament’s purposes apparent in the legislation.

Such differing views were apparent in Brown v Tasmania [2017] HCA 43 where the High Court held by majority that certain provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (the Protesters Act), in their operation in respect of forestry land, were invalid because they impermissibly burdened the implied freedom. The conduct proscribed by the legislation included the entering upon business premises in a way which prevented or obstructed the carrying out of the relevant business activities. Police officers were empowered to direct protesters to leave and stay away from business premises (under pain of arrest and criminal penalties), in circumstances where the police reasonably believed that a protester was preventing or obstructing business activity.

The business premises here concerned very large areas of land in the Lapoinya Forest in North-Western Tasmania where Forestry Tasmania, a Tasmanian Government Business Enterprise, had undertaken forest operations.

The plaintiffs, present in the Lapoinya Forest and opposed to the logging of parts of the forest had been arrested and charged with offences under the Protesters Act. The charges were not later pursued. It was not disputed that, but for police directions made under the Protesters Act, the plaintiffs would have gone back to the Lapoinya Forest for the purpose of raising public awareness of logging in that forest.

Applying the High Court 1997 Lange case (as refined in later cases) which laid out the tests for legislation validity where there is a challenge in reliance of the implied freedom, the majority of the High Court held that the impugned provisions did burden the implied freedom and were not reasonably appropriate and adapted, or proportionate, to the pursuit of the legislative purposes in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution required.

During the proceedings Tasmania conceded that the plaintiffs had standing, as to which Kiefel CJ, Bell and Keane JJ said: “That concession is appropriate. Standing is not lost because charges are withdrawn after the exercise of powers under a statute.” Further, said their Honours, the plaintiffs had a “real interest” in the question of the validity of the Protesters Act because, unless constrained by it, they intended to engage in conduct which it proscribed. They were therefore interested to know whether they were required to observe the law.

Their Honours referred to uncertainties in the Act – for example, a determination of whether a protester was in an area of forestry land had proved to be difficult for police officers with the circumstances surrounding the arrest of Dr Brown being revealing, given that at the relevant time, he was standing on a Reserve. And per Nettle J: “And where the means adopted is a power which turns upon the exercise of a discretion which is, in its terms, broad-ranging, it is the more likely that it will disproportionately burden the implied freedom even though it might be said, or hoped, that the “actual application may be limited by the sensible exercise” of the discretion by the person or official to whom the discretion is granted.”

As to whether the impugned provisions were reasonably necessary, Kiefel CJ, Bell and Keane JJ said that that question “involves determining whether there are alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom. Where such alternative measures are obvious and their practicability compelling it may be difficult for those arguing for the validity of the legislation to justify the legislative choice as necessary, as previously explained.”

Gordon J, dissenting in part, held that only s 8(1)(b) was invalid. Section 8(1)(b) states that once directed by a police officer to leave the area, a person was prohibited for the next 4 days from re-entering, whether or not the person’s entry would have any effect on forest operations.

Edelman J dissented on all issues, saying: “My conclusion … is that the Protesters Act is valid in its entirety in the circumstances of this case.” His Honour said that the Act created a regime which was intelligible and capable of practical operation for, in its regulation of forestry activities, it was an example of employing an additional layer of legislation on top of the pre-existing, and more specific, Forest Management Act (2013) (Tas). When read together, the uncertainties in the Protesters Act, were overcome. His Honour also said that if as here, the conduct about which legislation was concerned was independently unlawful, then there could be no “burden” on the freedom.